There is another ambiguity in the act, which says:
No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified . . . shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.
If Trump claims fraud, can members of Congress disregard pro-Biden votes of the electors, on the ground that they were not “regularly given”?
Probably not. As the legislative history suggests, the words “regularly given” were not understood to grant Congress much authority to reject the votes of electors.
If an elector voted for a presidential candidate who was not born in the U.S. (and hence was ineligible for office), his vote would not be “regularly given.” So too if an elector accepted a bribe in return for his vote. But this provision of the law was not meant to allow members of Congress to reject an elector’s vote on the ground that the popular vote was fraudulent. Still, the law is not exactly free of ambiguity when it comes to an allegation of fraud.
There’s also an elephant in the room: the role of the vice president, who, in this scenario, is Mike Pence.
Under the Constitution, he’s the president of the Senate. For a presidential election, what does that mean?
Suppose that after a contested vote in Pennsylvania, Congress receives two reports of who won there — one from the state legislature that favors Trump, and one from the governor that favors Biden. Which prevails?
The Electoral Count Act tries to sort that out — and seems to favor the governor. It aims to limit the role of the vice president, making his role merely ceremonial.
But we should also look at the 12th Amendment to the U.S. Constitution, which says this:
[T]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—
The person having the greatest number of votes for President, shall be the President . . .
OK. But note that the key words — “the votes shall then be counted” — are in the passive voice. Who counts them? Pence himself? Because of his obvious rooting interest, that seems crazy — and it is inconsistent with the Electoral Count Act — but under the 12th Amendment, which supersedes any statute, it is not clearly wrong.
Let’s step back a bit. If you’re frustrated by the existence of unresolved questions, join the club. (It’s a good club.)
My first column was meant to show that for what might be coming after Election Day, the Electoral Count Act provides a lot of guidance — much more than most people think. But crucial questions remain open, partly because of regrettable ambiguity in the law, and partly because the drafters in 1887 couldn’t anticipate everything.
A constitutional crisis is unlikely, but under current circumstances, it isn’t out of the question. Let’s hope that we don’t get there, because if we do, we won’t have an easy time finding our way out.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of The Cost-Benefit Revolution and a co-author of Nudge: Improving Decisions About Health, Wealth and Happiness.